Australia: A Native Title: Traditional Owners Overview

Indigenous rights have been recognised in more than half of the land in Australia, with an expectation that this will increase to close to three-quarters within the next five years. This places Australia’s First Peoples as significant stakeholders when it comes to solving Australia’s major land- and water-related challenges including the decarbonisation of mining, electricity transmission for the clean energy transition, new housing, water management and preserving biodiversity. Best practice engagement within and across Indigenous groups is therefore critical for industry and government looking for new ways to solve these challenges.

In native title law, sea claims and compensation continue to be key topics, as does reform of the future act regime and PBC support. Cultural heritage law reform is a focus at a national level and, in NSW, a High Court case related to an Aboriginal land claim is of note.

Energy and Critical Minerals

The implementation of the Federal First Nations Clean Energy Strategy is intended to enable First Nations leadership, strong partnerships, and collaboration amongst all parties to create a new “business as usual” that puts Country and Culture at the heart of Australia’s journey to net zero.

A benchmark for renewables proponents is equity stakes for Traditional Owner groups, and these have been announced on some major energy projects. Proponents committed to best practice should also explore co-design in recognition of the insight that Traditional Owners can bring to land issues and the need to ensure traditional connections to Country are maintained. On a smaller scale, innovative Indigenous-led microgrid projects are well underway though the regulatory framework continues to be a challenge. Standalone power systems will provide energy resilience for many remote Indigenous communities and will support some Traditional Owners to live on Country.

Critical minerals are a global focus, and Australia is pushing to be part of the solution. Exploration and mining proponents should engage Traditional Owners at an early stage given the legal requirements along with social licence expectations.

Housing, Development and Biodiversity    

There is an opportunity for Indigenous landowners to play an important role in tackling Australia’s housing crisis. By area, Indigenous groups are collectively the largest private landowners in eastern NSW, including substantial landholdings in the Six Cities Region, with groups in other states and territories also holding significant land assets. While the protection of Country and community remains paramount, the need to use land to provide housing, health, education, and wealth looms large for these communities. Many groups have begun to explore their own small- to large-scale land developments and it seems likely that Indigenous landowners will play an important role in tackling Australia’s housing crisis in the next decade, including through available land for development as well as land for environmental offsets.

Many Indigenous communities have rights or ownership over, or a legal claim to, much of the land and waters that governments, developers and conservationists are looking to use for conservation and biodiversity offsets. However, decisions about how to use the land are not always straightforward. While some Indigenous groups want to conserve their land, others want to use it to facilitate housing and economic development for their people. 

The independent reviews of the NSW and Federal biodiversity legislation have raised questions about how Indigenous knowledge of environmental management can be incorporated into policy and practice. Indigenous peoples’ understanding of Country is increasingly being recognised in respect of bushfire risks, but there is considerably more knowledge about environmental management that Indigenous people can bring. This will be an ongoing theme in agreement-making.

Water and Agriculture

The complex licensing and water management schemes across Australia have often overlooked the rights of Indigenous Australians. Some progress has been made in recent years, with a new Closing the Gap inland water target and the National Water Initiative being redeveloped with a greater focus on Indigenous Australians’ rights to water, including recognition of their rights to self-determination and free, prior and informed consent.

In the Murray-Darling basin, an Aboriginal-designed process is currently being developed to determine how Aboriginal Water Entitlements will be held and how benefits will be distributed. Government will need to meaningfully engage with multiple Indigenous communities in the Murray-Darling basin on these issues, as well as more broadly for the implementation of the Closing the Gap inland water target and (if agreed) the revised National Water Initiative.

Agricultural land use in Australia is transforming, with a rise in intensive agricultural uses, including cropping and horticulture. Land-use changes will have long-term effects, including on the environment, water, biodiversity protection, and landscape aesthetics. There are also significant potential impacts on native title and cultural heritage.

Native Title Compensation

Since the High Court first considered the principles relating to an award of compensation under the Commonwealth Native Title Act in 2019, there has been increased interest across Australia in native title compensation claims. There are currently seven active claims in the Federal Court – most of which relate to mining acts. One of these claims (Yindjibarndi v State of Western Australia & Ors) has been identified by the Court as being of public interest and an open online Court file is available. The closing submissions of parties were heard in February 2025.

In March 2025, the High Court judgment in Commonwealth of Australia v Yunupingu made national headlines. Of particular significance was the finding that the Commonwealth did not have power under the Constitution to make laws for the government of a territory with respect to the acquisition of property otherwise than on just terms and that extinguishment by a Commonwealth law of native title recognised before the Native Title Act commenced constituted an acquisition of property within the meaning of s.51(xxxi) of the Constitution.

Several procedural matters regarding how native title compensation claims can or should be made are still being determined by the courts. Broader questions of determining liability and quantum for mining acts across Australia are also yet to be resolved and represent some of the complex challenges Indigenous groups face in successfully prosecuting their claims – some of these questions may be answered in the resolution of the Yindjibarndi proceeding and Macarthur River proceeding. 

Future Act Review

There have been ongoing concerns about the adequacy of protections that the future act regime offers native title parties. The federal government recognised there is a need for reforms and has requested the Australian Law Reform Commission consider the operation of the future acts regime. Key issues for the inquiry include:

• resourcing and capacity to support engagement with the future acts regime; 
• agreement-making and procedural rights under the regime; 
• alternative regimes, and how the current future acts regime interacts with other legislation; 
• whether the regime is achieving its goals as stated in the preamble to the Native Title Act, and a lack of data to assess performance; and 
• the suitability of the regime for new and emerging industries. 

The ALRC is undertaking a broad review, including consideration of how the system contributes to social, cultural, environmental and economic outcomes for First Nations people and how the system can be better designed to respect their rights. The ALRC’s report is expected in December 2025.

Aboriginal Land Rights

In September 2025, the High Court handed down judgment in La Perouse Local Aboriginal Land Council v Quarry Street Pty Ltd. The proceedings were an appeal from the NSW Court of Appeal and related to an Aboriginal land claim over an inner-city bowling club. The case was closely watched by NSW government agencies and lessees of state land because it examined whether the existence of a lease for which the state receives rent demonstrates “use” of land for the purposes of s.36(1)(b) of the Aboriginal Land Rights Act. A High Court majority found that “use” in that context requires a purposeful deployment of the “physical land mass” and that the existence of the lease did not mean the land was “used”. In deciding in favour of the appellants, the High Court restored the decision of the Land and Environment Court to order the land be transferred to the Land Council.

Cultural Heritage

In response to the destruction at Juukan Gorge, the Joint Standing Committee on Northern Australia, in its second report, released in 2021, recommended a major overhaul of national cultural heritage laws. 

Western Australia has been the only Australian jurisdiction to implement new cultural heritage laws since Juukan Gorge. However, this reform was short-lived, with the WA government withdrawing its own legislation – the Aboriginal Cultural Heritage Act 2021 – in response to concerted public and stakeholder criticism. The result is a desperate need for state reform but no political appetite.

At a national level, the First Nations Heritage Protection Alliance and the Commonwealth Government have committed to a co-design partnership on cultural heritage reform. This is intended to last until 30 June 2026, with desired outcomes from the partnership to include:

• the co-design of reforms to Commonwealth First Nations cultural heritage legislation;
• proposed amendments to the laws;
• an implementation plan; and
• clear linkages with the new environmental laws and how these two pieces of legislation work together. 

Indigenous Governance

The intersection of western legal systems and traditional governance requirements presents a unique challenge for Indigenous organisations. As the diversification of Indigenous businesses using their land and other assets continues to widen and their partnerships expand, so do the legal issues relevant to these organisations. An awareness of laws relating to trusts and trustee responsibilities, fiduciary obligations, directors’ liability, employment and tax is critical for the increasingly complex organisations.

Climate change, including extreme weather, environmental impacts, and rising natural disasters, will affect long-term planning and governance of Indigenous organisations, their businesses and land uses. These developments will bring new challenges as well as opportunities.

Looking Ahead

The next few years will be important in defining how Indigenous communities engage with governments, corporations and the courts to activate the economic potential of their land as well as to protect Country. Ultimately, a commitment to supporting Indigenous people to exercise their rights and achieve outcomes of best practice for their communities remains vital for Australia’s economic and social potential to be realised while protecting environmental and cultural heritage.